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1. Section 1

2. Section 2

3. Section 3

4. Section 4

The 12th amendment superseded this clause, after the election of 1800 in which Thomas Jefferson and his running mate, Aaron Burr, received identical votes and both claimed the office. After many votes, the House of Representatives chose Jefferson, and soon thereafter the amendment was speedily approved.

The 25th amendment superseded this clause regarding presidential disability, vacancy of the office, and methods of succession

Section 1

The executive Power shall be vested in a President of the United States of America.

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Common Interpretation

Article II. The Executive Branch, Annenberg Classroom

Article II. The Executive Branch, Annenberg Classroom

By Annenberg Classroom

Article II, Section 1 establishes that the president and vice president are to be elected at the same time and serve the same four-year term. Until 1951, presidents could serve for as many four-year terms as they could win. But after President Franklin D. Roosevelt was elected for four terms, Congress passed and the states ratified Amendment XXII, which limits a president to two terms (eight years) in office. In the rare case that a vice president (or other official) takes over for a president who has stepped down or died in office and serves more than two years of the remaining term, he or she is limited to one new term.

Rather than being elected directly by the people, the president is elected by members of the Electoral College, which is created by Article II, Section 1. It is not really a “college,” but a group of people who are elected by the states. Each state is entitled to the number of electors equal to the combined number of their representatives and senators in Congress.

Neither members of Congress nor other federal officials may serve as electors. Each state legislature decides how members of the Electoral College are to be selected and how they are to vote. For example, some states select electors at primary elections or at caucuses. In most states, electors vote for the presidential candidate who won the vote in their state. But in a few states, state law specifies that electors cast their votes according to the percentage of votes received by each candidate. If the Republican candidate receives 55 percent of the vote, he or she receives the votes of 55 percent of the electors. The creation of the Electoral College gives more power to the smaller states, rather than letting the people in the most populous states control who becomes president.

Additional rules were added in 1804, when Amendment XII was adopted. For example, the amendment creates the way a president is selected when neither candidate obtains a majority of votes in the Electoral College.

There are three minimum requirements to be elected president: one must be a natural-born citizen of the United States, must have lived in the United States for at least 14 years, and must be at least 35 years old.

Although Article II, Section 1 originally provided who should become president if the president dies, resigns, or is removed from office, Amendment XXV, added in 1967, modified the line of succession.

The president’s salary is set by Congress. To avoid allowing Congress to punish or reward the president while he or she is in office, the Constitution prohibits any change in salary during the president’s term. The president also is prohibited from receiving any other type of compensation or perks while in office.

Before assuming office, the president must swear or affirm to do his or her best to serve as the nation’s leader and to uphold the United States Constitution as the law of the land.

Article II, Section 2 – What It Means

The president serves not only as the head of the executive branch of government, but also as the commander in chief of the armed forces (including state national guards when they are called on to serve with the federal armed forces).

As chief executive, the president runs the different executive agencies, such as the Department of the Treasury or the Department of Health and Human Services.
The president has the power to pardon (let free) any person who has committed a federal crime, except in cases of impeachment.

With permission from two-thirds of the senators present, the president can make treaties (agreements) with other countries. With the approval of a majority of senators, the president makes a number of key appointments. These include U.S. ambassadors and foreign consuls, Supreme Court justices and federal judges, U.S. attorneys, U.S. marshals, Cabinet officers, independent agency heads, and members of regulatory commissions. To ensure that the president can fill vacancies when the Senate is not in session, the president can make any of these appointments without Senate approval, but these “recess appointments” end at the end of the next Senate session.

Congress may choose to require Senate approval of other presidential appointments or let the president, courts or department heads appoint staff and agency employees without approval by the Senate.

Article II, Section 3 – What It Means

During his or her term, the president must report to Congress about how things are going in the country. Every president from Jefferson to Taft fulfilled this duty with a written statement submitted to Congress. But in 1913, Woodrow Wilson resumed George Washington’s practice of directly addressing a joint session of Congress. This “State of the Union” speech, a tradition that continues to this day, usually occurs in January or February each year.

The president also has the power, in extreme cases, to call both the House of Representatives and the Senate together for a special session. The president is given the power to meet with representatives from other nations on behalf of the United States and to otherwise run the country by enforcing the laws and directing officers and staff.

Article II, Section 4 – What It Means

The Constitution provides that the president, vice president, and other federal officers can be removed from office upon impeachment by the House and conviction by the Senate of treason, bribery, or other serious crimes. The process was begun only three times in U.S. history against a president — against Andrew Johnson, Richard Nixon (although he resigned before Congress could formally act) and Bill Clinton.

The impeachment process begins in the House of Representatives with a vote to impeach. Then the president (or other accused government official) stands trial for the accusations in the Senate. The Chief Justice of the United States presides at an impeachment trial of the president.

In all impeachment trials, members of the House serve as prosecutors and the full Senate sits as the jury. The accused official must be convicted by a two-thirds vote of the Senate to be removed from office.

Annenberg Classroom

Common Interpretation

Commander in Chief Clause

Commander in Chief Clause

By Michael D. Ramsey and Stephen I. Vladeck

The Commander in Chief Clause of Article II, Section 2 provides that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Justice Jackson put it in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer (1952)), “These cryptic words have given rise to some of the most persistent controversies in our constitutional history,” with Presidents at various points claiming that it “vests power to do anything, anywhere, that can be done with an army or navy.”

At a minimum, all agree that the Clause has two separate but related purposes: First, in response to the charge in the Declaration of Independence that the King had “affected to render the Military independent of and superior to the Civil Power,” it ensures civilian superintendence over the military—and, as such, the subordination of the military to civilian (and democratically accountable) control. Second, and in contrast to the experience under the Articles of Confederation, it places such civilian superintendence in the hands of a single person. As David Barron and Martin Lederman’s definitive academic study of the Clause explains, “the textual designation of the President as the Commander in Chief was intended to ensure that that officer, and no other, would be ultimately responsible for performing that role, whatever it was to entail.” To that end, they continue, the Clause “suggests that, at least with respect to certain functions, Congress may not (by statute or otherwise) delegate the ultimate command of the army and navy . . . to anyone other than the President.”

Although that principle, read narrowly, would only prohibit Congress from literally placing someone other than the President atop the U.S. military hierarchy, it presumably also means that Congress cannot insulate parts of the military from the President’s superintendence or interfere with the President’s supervisory role, lest Congress have the power to effectively undermine the President’s command authority—and, in Justice Jackson’s words, convert the Clause into an “empty title.”

Thus, as a case in point, Congress likely violated the Clause in an 1867 appropriations rider that sought to insulate Ulysses S. Grant—then the commanding general of the U.S. Army—from President Andrew Johnson by, among other things, requiring all orders to go through Grant (and voiding all orders that didn’t); precluding Grant’s removal by Johnson without Senate approval; and fixing Grant’s headquarters in Washington (where, presumably, he would be closer to Congress).

As a result of this superintendence principle, when Congress authorizes military operations (such as through a declaration of war), it necessarily puts the President in charge of them. Thus, as Chief Justice Chase explained in his concurring opinion in Ex parte Milligan (1866), the Commander in Chief Clause enshrines the President’s authority not just over “the command of the forces,” but also over “the conduct of campaigns.” And as Barron and Lederman explain, “more than 200 years of usage and court precedents reflect the view that the Commander in Chief Clause does confer broad substantive war powers on the President.”

A more difficult question is how much authority the Clause gives the President beyond operations approved by Congress. In the debates at Philadelphia, James Madison said that giving Congress the power to declare war would leave the President with power to repel sudden attacks. Presumably this power arises from the Commander in Chief Clause, read to convey independent substantive power to the President to direct the military on matters not related to war initiation. On this basis, Presidents have claimed authority over a range of military actions, including attacking pirates, rescuing U.S. citizens abroad, and making military deployments, although this authority is presumably circumscribed by other provisions of the Constitution and perhaps, some have argued, by international law.

In the Steel Seizure case, the Court rejected the President’s argument that the Clause empowered the President to seize steel mills in the United States to support the Korean War, and in Milligan, the Court rejected the argument that the Clause allowed the President to use military commissions to try civilians in areas where civilian courts were still operating. These cases indicate that the independent authority conveyed to the President by the Clause generally does not extend to interference with the rights and duties of U.S. civilians, at least outside the battlefield.

The most controversial aspect of the Clause is whether it limits Congress’s ability to enact statutes directing how military operations are conducted. For example, multiple Presidents have claimed that the War Powers Resolution, which limits the President’s ability to deploy troops into hostilities without Congress’s approval, is unconstitutional on this ground. After the terrorist attacks of September 11, 2001, the Executive Branch argued that, because of the Commander in Chief Clause, various statutory limits on the President’s authority were unconstitutional insofar as they, among other things, forbade the torture of detainees, warrantless surveillance, or the detention of U.S. citizens as enemy combatants. As a controversial 2002 government memorandum argued,

Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

In Hamdan v. Rumsfeld(2006), the Supreme Court appeared to reject this argument in invalidating military tribunals created by President Bush to try non-citizen terrorism suspects. As Justice Stevens wrote for the majority, “[w]hether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” However, the scope of Hamdan remains unclear, and in 2015 President Obama suggested that a statute completely limiting his ability to transfer detainees from the military prison at Guantánamo might unconstitutionally infringe his Commander in Chief powers.

In sum, the Commander in Chief Clause gives the President the exclusive power to command the military in operations approved by Congress; it probably gives the President substantial independent power to direct military operations so long has the President does not infringe exclusive powers of Congress or other provisions of the Constitution; and it may (but may not) limit Congress’ power to pass statutes directing or prohibiting particular military activities.

Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law
Stephen I. Vladeck Professor of Law, University of Texas School of Law

Matters of Debate

Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law

The President's Exclusive Power to Direct Military Operations by Michael D. Ramsey

If the United States undertakes military operations, either by authorization from Congress or under the President’s independent powers, the Constitution makes the President Commander in Chief of all U.S. military forces, and Congress cannot give command to any other person.

Stephen I. Vladeck Professor of Law, University of Texas School of Law

How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power by Stephen I. Vladeck

Disputes concerning the scope of the President’s unilateral authority under the Commander in Chief Clause—particularly of late—have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution’s separation of emergency powers.

Matters of Debate

The President's Exclusive Power to Direct Military Operations by Michael D. Ramsey

The President's Exclusive Power to Direct Military Operations

By Michael D. Ramsey

If the United States undertakes military operations, either by authorization from Congress or under the President’s independent powers, the Constitution makes the President Commander in Chief of all U.S. military forces, and Congress cannot give command to any other person. But can Congress itself direct how the President exercises that command by requiring or prohibiting certain military actions?

Scholarly opinion is sharply divided on this question. One view, principally associated with Professor John Yoo, holds that attempts by Congress to control the military contrary to the President’s desires infringe the Commander in Chief Clause by in effect depriving the President of the full ability to give commands. An opposing view, developed by Professor Saikrishna Prakash in a series of articles and an important 2015 book on executive power, sees Congress as having complete power over the military through various clauses of Article I, Section 8, with the President’s substantive command authority operating only where Congress has not provided specific direction.

Both views seem to overstate. Contrary to the first view, the Constitution expressly gives Congress significant power over the military. Most notably, Congress has power to “make Rules for the Government and Regulation of the land and naval Forces.” Nothing in the Constitution requires these “Rules” to be consistent with the President’s desires (although of course the President can resist them using the veto power). Further, Congress has a long history of regulating the military, including the articles of war (precursor of the modern Uniform Code of Military Justice) enacted in the immediate post-ratification period. Thus, for example, rules regarding how prisoners are to be treated, whether civilians may be targeted and how intelligence may be gathered by the military seem fully within Congress’s enumerated power. If the President’s Commander in Chief power overrode these rules, the Government-and-Regulation Clause would seem almost meaningless. In addition, Congress’s power to declare war likely includes power to set wartime goals and to limit a war’s scope. Prior to the Constitution, other nations routinely issued goal-setting declarations and fought limited wars. And Congress’s power to define the scope of a war seems confirmed by Congress’s statutory limits on the 1798 Quasi-War with France and by the Supreme Court’s approval of those limits in Bas v. Tingy (1800) and Little v. Barreme (1804).

However, contrary to the second view, the Constitution’s enumeration of Congress’s specific military powers indicates that Congress does not have plenary authority over military operations. In particular, although Congress can make general rules regarding military conduct and can define wartime objectives, it lacks enumerated power to direct battlefield operations—a point demonstrated by examining Congress’s powers under the Articles of Confederation.

In contrast to the Constitution, the Articles gave Congress the powers of “making rules for the government and regulation of the said land and naval forces, and of directing their operations” (emphasis added). The former power is carried over directly into the Constitution’s list of congressional powers, but the latter is not. This strongly suggests that Congress’s Government-and-Regulation power does not include power to “direct [military] operations.”

Another Perspective

This essay is part of a discussion about the Commander-In-Chief Clause with Stephen I. Vladeck, Professor of Law, American University Washington College of Law. Read the full discussion here.

The brief war powers debate at the Philadelphia Convention confirms that this omission was intentional and substantive. As is well known, the Convention’s draft at one point gave Congress the power to “make” war. James Madison proposed changing this to “declare” war— principally, he said, to leave the President with power to repel sudden attacks. Rufus King of Massachusetts then made a related point: “that ‘make’ war might be understood to ‘conduct’ it which was an Executive function.” The Convention adopted the proposed change, suggesting that the delegates did not want Congress to have the power to “conduct” war.

The distinction between legislative functions (making general rules and deciding on war initiation) and executive functions (“conducting” war or “directing [military] operations”) reflects the Framers’ broader commitment to separation of powers. As Alexander Hamilton explained in The Federalist No. 74,

[T]he direction of war peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.

Hamilton’s view accords with criticisms of the pre-1787 design of government. The national government prior to the Constitution lacked separation of powers, combining legislative and executive power in a single multi-member entity, and it was thought defective on that ground. Among other perceived problems, Congress meddled in the tactical direction of the Revolutionary War. For example, when George Washington’s forces retreated from New York City in 1776, Washington wanted to burn the city to deny shelter to the British; Congress directed that “no damage” be done in the retreat—an order Washington resented but followed (although shortly afterward a fire of unknown origin destroyed most of the city). Federalist No. 74 likely had this problem in mind in calling for “directing . . . the common strength” by a single person.

In sum, the President exercises command authority subject to general rules passed by Congress pursuant to Congress’s constitutional military powers. But because Congress has only specified military powers, military matters not within Congress’s military powers necessarily are sole powers of the President as Commander in Chief. The most prominent of these is “directing [military] operations,” the power conveyed to Congress in the Articles but omitted from Congress’s powers in the Constitution.

To be sure, it may often be difficult to draw a clear line between legislative “Rules” for the conduct of the military, on one hand, and executive “direction” of military operations on the other. But in general, the former power encompasses creating standing directions and punishments that broadly control behavior of the military (such as the articles of war, the Uniform Code of Military Justice, or statutes such as the War Crimes Act); the latter power refers to contingent orders made in response to developments in battles and campaigns. Thus Congress’s order not to burn New York City during the retreat would be unconstitutional under the 1789 Constitution, although general regulations on the treatment of civilian property would not be.

Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law

Matters of Debate

How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power by Stephen I. Vladeck

How the Militia Clauses Inform the Scope of the Commander in Chief’s Inherent Power

By Stephen I. Vladeck

Disputes concerning the scope of the President’s unilateral authority under the Commander in Chief Clause—particularly of late—have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution’s separation of emergency powers. Perhaps no provision has been more neglected in this discourse than the so-called “Calling Forth” Clause of Article I, which empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As Justice Jackson explained in his Steel Seizure concurrence,

Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

And yet, except as it pertains to debates over the original understanding of the Second Amendment and the authority to deploy National Guard units overseas, Congress’s constitutional power to provide for the use of the militia during these three types of domestic crises has been overlooked in almost every contemporary assessment of the President’s inherent war powers, to the point where scholars too numerous to count have accepted without qualification the argument that the President possesses at least some independent authority to use military force in domestic emergencies—assuming that such power derives, most naturally, from the Commander in Chief Clause.

In fact, since 1792, Congress has provided specific statutory authorization for military deployments in the cases contemplated by the Calling Forth Clause, first through the militia (which President Washington called forth to help put down the Whiskey Rebellion) and subsequently through the “regular” federal army (as the unreliability of the militia became increasingly clear). And even in the Prize Cases (1863), in which the Supreme Court famously recognized the President’s power to repel sudden attacks, it attributed at least some of that authority not to the Commander in Chief Clause, but to these statutes, by which “he is authorized to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” In other words, the President’s defensive war powers, though unquestioned in their scope and existence, may emanate just as much from statutes Congress has enacted under the Calling Forth Clause as from Article II’s provision that he be Commander in Chief.

Another Perspective

This essay is part of a discussion about the Commander-In-Chief Clause with Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law. Read the full discussion here.

The more interesting question is why the Calling Forth Clause has disappeared from our modern view of how the Constitution separates war powers. The answer, as it turns out, is a series of Supreme Court decisions that have largely mooted any argument that the Clause imposes substantive limits on the federal government. Thus, in a pair of 1918 Supreme Court rulings—the Selective Draft Law Cases and Coxv.Wood—the Justices concluded that the Calling Forth Clause does not in fact limit the circumstances in which the government may call out the militia, upholding the constitutionality of a draft designed to recruit soldiers to fight in World War I, a purely foreign conflict. Thus, although the Framers may well have intended the Calling Forth Clause both to cement the militia’s exclusive role in responding to domestic emergencies and to prevent their federalization for other purposes, the 1918 decisions largely vitiated that structural reading by concluding that the militia could also be called forth to fight in foreign wars.

More recently, in Perpichv.Department of Defense (1990), the Supreme Court held that members of the National Guard are, for constitutional purposes, federal regulars when called into the active service of the United States—and, like the militia in the 1918 cases, may therefore be deployed for purposes other than those outlined in the Calling Forth Clause. Perpich therefore suggests that, at least under the Guard’s dual enlistment system, the Calling Forth Clause is effectively a non-starter; the constitutional text simply doesn’t matter because there is virtually no situation today when the “militia,” at least as the Supreme Court has interpreted the term, is actually being “called forth,” and federal regulars may be called forth even in those contexts in which the Calling Forth Clause might otherwise have been read to require utilization of the militia.

But whereas the Supreme Court has largely vitiated the Calling Forth Clause’s potential role as a structural check on other uses of military power, the Clause remains relevant today in helping to cement Congress’s constitutional authority to circumscribe the President’s domestic war powers—authority it has exercised in a number of circumstances, including through the Posse Comitatus Act of 1878, which requires express authorization from Congress before the military may be utilized in a domestic law enforcement capacity. After all, if the militia was initially intended to be the primary (if not exclusive) response force for a domestic emergency, and if Congress was given the power to provide for their calling forth (and, through the other Militia Clause, their regulation), then the Constitution appears to resolve in Congress’s favor any argument that such statutory limitations unconstitutionally infringe upon the President's constitutional authority as Commander in Chief.

So construed, the Calling Forth Clause undermines the ever-more-visible arguments in favor of strong and unilateral domestic presidential war powers. Of course, there can simply be no question that the Constitution empowers the federal government, acting in concert, to act decisively—and expeditiously—during domestic emergencies; the Constitution, after all, “is not a suicide pact.” But it is not nearly as straight a line from accepting that point to accepting a sweeping and potentially preclusive domestic Commander in Chief power. To the contrary, the reality is that the Constitution expressly envisions a role for Congress to play in providing for governmental responses to even the most existential crises at home, however lost to modern eyes. This dramatically undermines arguments evoking a broad and unilateral authority for the Commander in Chief in the circumstances contemplated by the Calling Forth Clause, i.e., “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

Stephen I. Vladeck Professor of Law, University of Texas School of Law

Common Interpretation

Article II, Section 2: Treaty Power and Appointments

Article II, Section 2: Treaty Power and Appointments

By John O. McGinnis and Peter M. Shane

I. Treaty Power

The Constitution provides, in the second paragraph of Article II, Section 2, that “the President shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.” Thus, treaty making is a power shared between the President and the Senate. In general, the weight of practice has been to confine the Senate’s authority to that of disapproval or approval, with approval including the power to attach conditions or reservations to the treaty.

For instance, the authority to negotiate treaties has been assigned to the President alone as part of a general authority to control diplomatic communications. Thus, since the early Republic, the Clause has not been interpreted to give the Senate a constitutionally mandated role in advising the President before the conclusion of the treaty.

Also of substantial vintage is the practice by which the Senate puts reservations on treaties, in which it modifies or excludes the legal effect of the treaty. The President then has the choice, as with all treaties to which the Senate has assented, to ratify the treaty or not, as he sees fit.

The question of whether the President may terminate treaties without Senate consent is more contested. In 1978, President Carter gave notice to Taiwan of the termination of our mutual defense treaty. The U.S. Court of Appeals for the District of Columbia held that the President did have authority to terminate the treaty, but the Supreme Court in Goldwater v. Carter (1979), vacated the judgment without reaching the merits. The treaty termination in Goldwater accorded with the terms of the treaty itself. A presidential decision to terminate a treaty in violation of its terms would raise additional questions under the Supremacy Clause, which makes treaties, along with statutes and the Constitution itself, the “supreme Law of the Land.”

There remains the question of how the Treaty Clause comports with the rest of the system of enumerated and separated powers. Missouri v. Holland (1920) suggests that the Treaty Clause permits treaties to be made on subjects that would go beyond the powers otherwise enumerated for the federal government in the Constitution. In Reid v. Covert (1957), however, the Court held that treaties may not violate the individual rights provisions of the Constitution.

A still-debated question is the extent to which the Treaty Clause is the sole permissible mechanism for making substantial agreements with other nations. In fact, the majority of U.S. pacts with other nations are not formal “treaties,” but are sometimes adopted pursuant to statutory authority and sometimes by the President acting unilaterally. The Supreme Court has endorsed unilateral executive agreements by the President in some limited circumstances. For instance, in United States v. Belmont (1937), the Court upheld an agreement to settle property claims of the government and U.S. citizens in the context of diplomatic recognition of the Soviet Union. In Dames & Moore v. Regan (1981), the Court upheld President Carter’s agreement with Iran, again concerning property claims of citizens, in the context of releasing U.S. diplomats held hostage by Iran. The Court has never made clear the exact scope of executive agreements, but permissible ones appear to include one-shot claim settlements and agreements attendant to diplomatic recognition.

With so-called congressional-executive agreements, Congress has also on occasion enacted legislation that authorizes agreements with other nations. For instance, trade agreements, like the North America Free Trade Agreement (NAFTA), have often been enacted by statute. In contrast, the Senate objected strenuously when President Jimmy Carter appeared intent on seeking statutory approval, rather than Senate concurrence (which would have required a two-thirds vote) for the Strategic Arms Limitation Talks II (SALT II) treaty. It is sometimes argued in favor of the substantial interchangeability of treaties with so-called congressional-executive agreements that Congress enjoys enumerated powers that touch on foreign affairs, like the authority to regulate commerce with foreign nations. But, unlike legislation, international agreements establish binding agreements with foreign nations, potentially setting up entanglements that mere legislation does not.

Since Chief Justice John Marshall’s opinion in Foster & Elam v. Neilson (1829), the Supreme Court has distinguished between treaties that are now called self-executing and treaties that are non-self-executing. Self-executing treaties have domestic force in U.S. courts without further legislation. Non-self-executing treaties require additional legislation before the treaty has such domestic force. In Medellín v. Texas (2008), the Court suggested there may be a presumption against finding treaties self-executing unless the treaty text in which the Senate concurred clearly indicated its self-executing status.

II. Appointments

The remainder of Paragraphs 2 and 3 of Article II deals with the subject of official appointments. With regard to diplomatic officials, judges and other officers of the United States, Article II lays out four modes of appointment. The default option allows appointment following nomination by the President and the Senate’s “advice and consent.” With regard to “inferior officers,” Congress may, within its discretion, vest their appointment “in the President alone, in the courts of law, or in the heads of departments.” The Supreme Court has not drawn a bright line distinguishing between inferior officers who might be appointed within the executive branch and inferior officers Congress may allow courts to appoint, provided only that, for judicial appointees, there be no “‘incongruity’ between the functions normally performed by the courts and the performance of their duty to appoint.” Morrison v. Olson (1988).

Buckley v. Valeo (1976) confirms that the Article II variations are Congress’s sole options in providing for the appointment of officers of the United States. The text, however, raises the questions: Who counts as an “officer” of the United States, as opposed to a mere employee? And what characterizes an officer’s status as “inferior,” as opposed to “superior” or “principal?”

The Court’s definition of “officer” in Buckley entails a degree of circularity. In general, “any appointee exercising significant authority pursuant to the laws of the United States” is an “officer of the United States.” By contrast, a federal employee is not an “officer” if performing “duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” A later case, INS v. Chadha (1983), may implicitly have given the Buckley formulation more substance. Chadha held that the enactment of legislation is Congress’s only permissible means of taking action that has the “purposes and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch.” Importing Chadha’s holding into the Buckley holding implies that, at a minimum, any administrator Congress vests with authority to alter the legal rights, duties and relations of persons outside the legislative branch would have to be an “officer,” and not an employee, of the United States because that officer would be performing a function forbidden to Congress acting alone.

Distinguishing inferior from principal officers has also sometimes proved puzzling. Morrison v. Olson, which upheld the judicial appointment of independent counsel under the Ethics in Government Act of 1978, applied a balancing test focused on the breadth of the officer’s mandate, length of tenure, and limited independent policymaking. A later decision, however, provided an additional or perhaps substitute bright-line test, defining “inferior officers” as “officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States (1997).

Perhaps the greatest source of controversy regarding the Appointments Clause, however, surrounds its implications, if any, for the removal of federal officers. The Supreme Court has held that Congress may not condition the removal of a federal official on Senate “advice and consent,” Myers v. United States (1926), and, indeed, may not reserve for itself any direct role in the removal of officers other than through impeachment, Bowsher v. Synar (1986).

Those cases do not determine, however, whether Congress may limit the President’s own removal power, for example, by conditioning an officer’s removal on some level of “good cause.” The Supreme Court first gave an affirmative answer to that question in Humphrey’s Executor v. United States (1935), which limited the President’s discretion in discharging members of the Federal Trade Commission to cases of “inefficiency, neglect of duty, or malfeasance in office.” Morrison v. Olson reaffirmed the permissibility of creating federal administrators protected from at-will presidential discharge, so long any restrictions on removal do “not impermissibly interfere with the President’s exercise of his constitutionally appointed functions.” Although this formulation falls short of a bright-line test for identifying those officers for whom presidents must have at-will removal authority, the doctrine at least implies that presidents must have some degree of removal power for all officers. That is, presidents must be able at least to secure an officer’s discharge for good cause, lest the President not be able to take care that the laws be faithfully executed. The Court has since held, in that vein, that officers of the United States may not be shielded from presidential removal by multiple layers of restrictions on removal. Thus, inferior officers appointed by heads of departments who are not themselves removable at will by the President must be removable at will by the officers who appoint them. Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010).

The Recess Appointments Clause was included in Article II in the apparent anticipation that government must operate year-round, but Congress would typically be away from the capital for months at a time. Over the ensuing decades—and extending to modern times when Congress itself sits nearly year-round—the somewhat awkward wording of the Clause seemed to pose two issues that the Supreme Court decided for the first time in 2014. First, does the power of recess appointments extend to vacancies that initially occurred while the Senate was not in recess? Second, may a period of Senate adjournment trigger the President’s recess appointment power even if that period of adjournment occurs during a Senate session, rather than between the adjournment of one session sine die and the convening of the next? Finding the text ambiguous, the Court answered both questions affirmatively, provided that the relevant “intra-session” recess lasted ten days or longer. (As a result, in the particular case, the Court ruled against the President, because the relevant recess was too short.) The majority rested its analysis on what it took to be a relatively consistent pattern of behavior by Congress and the executive branch, effectively ratifying the President’s power as thus construed. NLRB v. Noel Canning (2014).

John O. McGinnis George C. Dix Professor in Constitutional Law, Northwestern University School of Law
Peter M. Shane Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

Matters of Debate

John O. McGinnis George C. Dix Professor in Constitutional Law, Northwestern University School of Law

An Originalist Reading of Article II, Section 2 by John O. McGinnis

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution.

Peter M. Shane Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

Delphic Article II By Peter M. Shane

Article II of the U.S. Constitution is plainly critical to establishing two fundamental institutional relationships: the President's relationship with Congress and the President's relationship to the remainder of the executive establishment, which we would now call "the bureaucracy."

Matters of Debate

An Originalist Reading of Article II, Section 2 by John O. McGinnis

An Originalist Reading of Article II, Section 2

By John O. McGinnis

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context. Courts are obligated to use the interpretive methods at the time of enactment to find the better-supported meaning, even if an ambiguous text can yield more than one meaning.

The results of an originalist reading of these Clauses would at times favor the President, but at other times disfavor him, but they would more generally promote accountability. They would also create more bright line rules and limit the discretion of the Supreme Court to make decisions according to opaque balancing tests that maximize its own power.

Appointments Clause. The Appointments Clause must be read against the background of "the executive power" granted to the President. That authority included the traditional powers of an executive, not simply enumerated powers as those specified in Article I. Article II then qualifies that understanding by expressly giving some of the executive's traditional powers to Congress. In the Appointments Clause, the Senate is given the power to advise and consent to nominations. Because the Constitution does not change the executive's power to dismiss subordinate officers, the President retains that unqualified power, as it was part of the traditional executive authority. This view reflects the majority view of the First Congress after a deliberate debate when they did insulate the President's authority over the Secretary of State. See Saikrishnah Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1012 (2006).

Another Perspective

This essay is part of a discussion about the Treaty and Appointments Clauses with Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law. Read the full discussion here.

The contrary decisions of the Court are both wrong and unclear. In Morrison v. Olson (1988), for instance, the Court did not offer a rule for determining when Congress could insulate the President's power, but made instead the question depend on such factors as the scope and authority of the office at issue. This aggrandized the Court's power and unsettled an established framework for government.

Similarly, the Court is wrong to permit courts to appoint executive officials so long as there is no "'incongruity' between the functions normally performed by the courts and the performance of their duty to appoint." Morrison v. Olson (1988). It is true that the Appointments Clause allows "courts of law" to appoint "inferior officers." But just as the President's authority under the Appointments Clause must read against the background of Article II, so the courts' authority must be read against the background of Article III that defines their own powers. There the judicial power is defined as "extending to cases." The authority of courts of law in appointments matters is thus more naturally read as ancillary to their defined powers. Accordingly, courts of law can appoint the officers ancillary to their own work of deciding cases, like law clerks and bailiffs, but not executive officials. Once again, the Supreme Court has replaced a relatively clear line with a murky test that exalts the judiciary's own powers.

Similarly, Morrison's balancing test for what is an inferior officer wrongly focused on the breadth of the officer's mandate, length of tenure, and limited independent policy making. The appropriate test for inferior officer flows directly from the term's obvious meaning: such an officer must be subordinate to a principal officer; one who has been confirmed by the Senate. It also provides a bright line rule. Happily, the Court may be moving to embrace this test. SeeEdmond v. United States (1997).

The Court has also failed to follow the original meaning of the Recess Appointments Clause. (For an excellent discussion of the original meaning, see Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2004)). First, the power of recess appointments extends only to vacancies that initially arose while the Senate was not in recess. This "arise interpretation" is much better supported than an interpretation that makes the Clause applicable to vacancies that exist whenever there is a recess. The phrase "happen during the recess" naturally implies an event that occurred during the recess, not a state of affairs. Indeed, not reading the Clause in this way deprives the word "happened" of any independent function. The "arise" interpretation was also the meaning of the Clause embraced even by the executive in the early Republic.

Second, the term "recess" applies only to intrasession recesses. That conclusion flows from the use of the terms adjournment and recess, the former of which in the Constitution seems to be used to refer to intrasession and the latter of which to intersession recesses. In contrast, the Supreme Court's functional rule of ten days cannot be found or inferred anywhere from the text. Moreover, the Court's suggestion in NLRB v. Noel Canning (2014) that its judge-made rule may not even apply in extraordinary circumstances, once again arrogates power to itself.

The Treaty Clause. Just as the President can fire executive officials pursuant to executive power that was not limited by the Appointments Clause, the President can terminate treaties according to their terms, because that traditional executive power was not limited by the Treaty Clause. However, he cannot terminate treaties in violation of their terms, because the Supremacy Clause makes treaties the supreme law of the land.

The Supreme Court is correct that President and the Senate can make treaties beyond the enumerated powers. The Treaty Clause is an executive power in Article II, and does not come with the limitations of Article I. Moreover, as Alexander Hamilton noted, its abuse is carefully guarded by a substantial supermajority rulemdash;one that does not apply to legislation.

While the Court's decisions upholding executive agreements are not incorrect, the practice of executive agreements needs to be more clearly circumscribed. The high hurdle posed by advice and consent under a supermajority rule was meant to prevent foreign entanglements. Thus, purely executive agreements should be permitted only when they are one-shot agreements, like prisoner exchanges or claim settlements, or when they are based solely on independent presidential authority, like the authority to recognize foreign nation states. See Michael B. Ramsey, The Constitution's Text in Foreign Affairs 191-217 (2007).

For similar reasons, the notion that Congress and the President together can strike international deals so long as they make a congressional-executive agreement is wrong, and would deprive the Treaty Clause of much of its force. Perhaps the practice in some areas of congressional-executive agreements, like trade agreements, is so settled that it should not be reversed. But practice has never embraced the complete interchangeability of treaties and executive agreements, and such interchangeability cannot be squared with the Constitution's express requirements for making treaties.

John O. McGinnis George C. Dix Professor in Constitutional Law, Northwestern University School of Law

Matters of Debate

Delphic Article II By Peter M. Shane

Delphic Article II

By Peter M. Shane

Article II of the U.S. Constitution is plainly critical to establishing two fundamental institutional relationships: the President's relationship with Congress and the President's relationship to the remainder of the executive establishment, which we would now call "the bureaucracy." Despite the text's seeming specificity on some key points -- e.g., the President's role in the appointments process -- the Constitution's silences and the ambiguity of the text in other respects have fueled spirited arguments through the centuries for very different concepts of the American presidency. To paraphrase Justice Robert Jackson, Americans may "be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet & Tube Co. v. Sawyer (1952).

With regard to the legislative-executive relationship, the Washington Administration set institutional precedents that have been followed with such consistency over the centuries that they now dominate our understanding of Article II. To the uninitiated reader, the Treaty Clause might be thought to imply that treaties represent the sole permissible instrument for formalizing the nation's international obligations, or that the Senate, because of its "advice and consent" role, would be a full partner with presidents in the negotiation of treaties. Neither is the case. The Washington and Adams Administrations used executive agreements, without Senate consent, both in arranging for the international delivery of mail and in settling claims arising from the seizure of a U.S. ship by a Dutch privateer. Such agreements, sometimes pursued unilaterally and sometimes with statutory authority, now far outnumber treaties as instruments of international commitment. As for actual treaties, when the Senate failed to provide Washington prompt advice concerning the negotiation of peace between Georgia and the Creek Indians, he established the now-uniform practice of presenting to the Senate for its consent only treaties that have already been completed.

The first Congress and the Washington Administration also began filling in some of the constitutional silences regarding their respective powers. Congress first asserted its unstated power to investigate the executive branch by establishing a special committee to look into the bloody defeat of the U.S. Army by a confederation of Indian tribes in the Northwest Territory. Washington, for his part, provided the committee with those executive branch documents it sought to inform its investigation, but only after determining with his cabinet that the disclosure decision was discretionary on his part and that presidents might constitutionally withhold information that ought, in the public interest, not be disclosed. He later implemented his view by withholding from the House of Representatives documents it sought in connection with negotiations over the Jay Treaty. This laid a foundation for future claims of executive privilege, a phrase nowhere found in Article II.

Text, even aided by history, however, shines less light on constitutional requirements for the President's relationship to those other instrumentalities of government that Congress creates but which are not part of the federal judiciary -- that is, to the plethora of "departments," "agencies," "administrations," "boards," and "commissions" comprised within the executive branch. Recent decades have seen much ardent advocacy on behalf of the so- called "unitary executive" idea -- specifically, the view that Article II, by vesting law execution power in the President, forbids Congress from extending any such authority to individuals or entities not subject to presidential control. Adherents to this unitary executive reading of Article II insist that the Constitution guarantees the President plenary powers, which Congress may not limit, both to discharge unelected executive administrators at will and to direct how those officials shall exercise any and all discretionary authority that they possess under law. To take but one quotidian example, a Justice Department opinion from the Reagan Administration argued that a statute requiring the Director of the Centers for Disease Control to arrange for the mass mailing of AIDS information fliers, free from any executive branch supervision, violated separation of powers by "unconstitutionally infringing upon the President's authority to supervise the executive branch." Statute Limiting the President's Auth. to Supervise the Dir. of the Centers for Disease Control in the Distribution of an AIDS Pamphlet, 12 U.S. Op. Off. Legal Counsel 47 (1988).

Another Perspective

This essay is part of a discussion about the Treaty and Appointments Clauses with John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law. Read the full discussion here.

With regard to most of what the executive branch does -- namely, implementing domestic statutes with no close connection to foreign affairs or military command -- this interpretation is not persuasive. The clauses that supposedly ground unitary executive theory are the Executive Power Vesting Clause, the Faithful Execution (or "Take Care") Clause, and the Written Opinions Clause. Independently or all together, these clauses are thought to create two constitutional imperatives. The first is that the President is entitled to execute the laws personally and may take upon himself or herself the prerogative of making any administrative decision that Congress has assigned to any officer within the executive branch. The second is that the President is entitled to remove at will any officer of the United States who serves in the executive branch.

The first problem with this interpretation is that the relevant clauses viewed either independently or together did not originally have the semantic implications that unitary executive theorists imagine. These kinds of clauses were prevalent in early state constitutions that also established relationships between governors, as chief executives of the states, and state agencies. Rather than giving governors unitary executive control over state administration, they nearly all split supervision of the bureaucracy among the different branches of government -- the governor, the legislature, and, in some states, the courts. Originalist defenders of a unitary executive reading of the federal Constitution often dismiss the interpretive significance of pre-1787 state constitutions on the ground that these early texts paid only lip service to separation of powers principles, while presenting the Framers chiefly with examples of government structure to avoid. The problem with this stance is that state constitutions written in the first decades after 1789 persisted in using the same clauses, by that time found also in Article II, to describe state governments in which governors continued to lack unitary control. Close study of the state constitutions and state administrative practice under them thus belie any "unitary executive" reading of Article II that purports to be based on contemporary understandings of the text alone.

Nor is the argument borne out by a history of institutional practice. The First Congress's handiwork regarding the structure of the initial administrative departments is inconsistent with the idea that the Framers intended a unitary executive. Congress accommodated presidential control at different levels, from seemingly complete, as with the Department of State, to essentially non-existent, as with the boards and commissions authorized to oversee the Mint, to buy back debt of the United States, and to rule on patent applications. Unitary executive advocates may point to a variety of presidential statements over the years asserting the existence of a comprehensive presidential supervisory authority. But again to quote Justice Jackson, who wrote in 1952 about constitutional debates on the scope of presidential power: "A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question." Youngstown Sheet Tube v. Sawyer (1952). Unitarian arguments based on presidential statements simply cannot overcome Congress's conspicuous eclecticism from its first session forward in fashioning different administrative structures with different lines of accountability to different sources of supervision.

Finally, the argument for the unitary presidency makes the mistake of anachronism. The managerial presidency extolled in the late eighteenth century was just not conceptualized in the policy terms now understood by modern presidentialists. Even if the original presidential office had been intended to be unitary in some administrative sense, the President's originally designed managerial powers cannot logically add up to the contemporary version of unitary power urged upon us by twenty-first century presidentialists, who interpret the Constitution as putting the President personally in charge of the exercise of any or all policy making discretion that Congress may delegate to anyone within the executive branch.

A better view is fully reconcilable with the text and truer to both relevant Supreme Court opinions and our institutional history. It holds that outside those particular subjects that are independently within the President's inherent powers, such as issuing pardons or making treaties, the degree of policy control the President may exercise over subordinate officers is up to Congress. Congress is limited, in turn, only by the Constitution's constraints on the scope of national legislative authority and the President's entitlement to dismiss officers of the United States who are breaking the law or negligent in the execution of their duties.

For this reason, there is an intimate connection between the President's relationship with Congress and the President's relationship to the remainder of the executive establishment. Specifically, the latter is significantly determined by the former. The Constitution gives Congress the political discretion to defer substantially to the pleas of the executive for highly centralized control over administrative agencies, but only if Congress chooses to do so. The bare framework of Article II leaves presidents with the task of persuading Congress that authorizing such control over any particular agency is in the public interest -- a judgment of policy, not constitutional interpretation.

Peter M. Shane Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

Common Interpretation

The Vesting Clause

The Vesting Clause

By Saikrishna B. Prakash and Christopher H. Schroeder

Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” At a minimum, this Vesting Clause establishes an executive office to be occupied by an individual. At the Founding, the creation of a separate executive was hardly obvious. The Articles of Confederation created no separate executive; duties that we associate with the executive were handled first by congressional committees and then by “Secretaries” or “Boards” under congressional direction. Nor was it self-evident that one individual would stand at the apex of the executive. Several states had plural executives (executive committees) and the notion of a plural executive had its backers at the Philadelphia Convention.

Few could disagree that the Vesting Clause establishes a unitary executive in the sense that it creates a single executive President. Throughout our Constitution’s history, some politicians, judges, and scholars have argued that this minimal sense exhausts the content of the Clause. Others have argued that the Clause does more and actually grants the President “the executive power.” In recent years, advocates of this latter view have identified their position with the label “Unitary Executive.” But this label is a bit misleading, for we would do well to remember that the idea that the Constitution establishes a unitary executive is perhaps universally shared, at least in the minimalist sense outlined above.

In this disagreement, two issues predominate. First, does the term “executive power” identify a set of powers beyond those expressly identified in the Constitution, but which are nonetheless given to the President by virtue of the Vesting Clause? Vesting Clause minimalists often claim there was no settled meaning to the term at the time of the Founding and that “the executive power of the United States” refers only to those powers elsewhere assigned to the President. The Unitary Executive position is that at the Founding “executive power” referred to a suite of powers, such as the powers to execute the law, appoint officers, communicate with foreign governments, formulate foreign policy, wage war, and the like. The Vesting Clause grants this entire suite to the President, subject to express limitations in the Constitution. The President may not appoint without securing the Senate’s consent, for instance, and Article I, Section 8, Clause 11 provides that the Congress shall declare war, with the implication that the President cannot.

Second, by “vesting” powers in a singular executive, does the Vesting Clause establish that the President may exercise those powers by himself, without interference by Congress, and, concomitantly, does it give the President the authority to direct and supervise any federal official involved in such matters? Advocates of the Unitary Executive position often assert that the President can exercise his constitutional powers without congressional interference and that he may direct executive officers. For their part, Vesting Clause minimalists tend to claim that Congress, through the exercise of its legislative powers including the Necessary and Proper Clause, can qualify or regulate the President’s exercise of powers that have not been clearly assigned to his sole discretion so long as Congress does not impede the President’s ability to discharge his constitutional duties.

Notice that neither the two Unitary Executive positions nor the two minimalist positions are necessarily linked to one another. One could conclude that the Vesting Clause minimalists have the better case on the first question while the Unitary Executives have the better view on the second, for example. Yet in practice, people often adopt one pair of related views or the other set.

These questions matter. In their purest forms the two understandings of the Vesting Clause—the minimalist and the Unitary Executive—imagine quite different allocations of power and institutional arrangements. If the Unitary Executive stance were to prevail, perhaps all of the independent agencies of the federal government, from the Federal Communications Commission to the Federal Reserve, would be unconstitutional because of congressional restrictions placed on the President’s authority to remove members of their commissions or boards. After all, these restrictions would be seen as unduly inhibiting the President’s ability to supervise and control. But if minimalists have the better reading of the Vesting Clause, what prevents Congress from granting removal protections to the entire bureaucracy, including such officials as the Secretary of State or the Attorney General? So long as it leaves the President the ability to ensure faithful execution of the laws, Congress might be able to radically refashion his relationship to departments long thought of as executive and under his supervision.

Judicial doctrine on these questions is mixed. The Court has, from time to time, endorsed the idea that the Vesting Clause vests powers independent of the rest of Article II. In a case involving presidential dismissal of a postmaster, Myers v. United States (1926), the Court claimed that the Vesting Clause granted authority to execute the law and to remove executive officials. In a decision from the late nineteenth century, In re Neagle (1890), the Court upheld the authority of the President to assign a federal marshal to protect a Supreme Court justice who had been threatened by a disgruntled litigant, despite the absence of any statute granting that authority. In United States v. Curtiss-Wright Export Corp. (1936), the Court famously announced that the President was the “sole organ of the nation in its external relations.” In the twenty-first century, the Court observed in American Insurance Ass’n v. Garamendi (2003) that the “historical gloss” on the executive power conferred upon the President the vast share of foreign affairs powers.

Yet in a series of removal cases, the Court has also approved congressional authority to insulate public officials from executive control. In a case involving the Federal Trade Commission, Humphrey’s Executor v. United States (1935), the Court held that Congress could limit the President’s ability to remove a commissioner. Similarly, in Morrison v. Olson (1988) the Court sustained a law that said the executive could remove independent prosecutors for just cause only. The law gave the President sufficient authority to ensure faithful execution, or so the Court held. And, it should be noted, the Court sometimes avoids resolving questions about the meaning of the Vesting Clause, choosing to rest its decisions on other grounds.

Arguments about the Vesting Clause surface whenever the government takes actions that might not fit squarely within existing understandings of how the Constitution separates powers. Can the President unilaterally terminate a treaty? Can the President resolve international disputes through agreements negotiated by him and then submitted to Congress for implementing legislation as needed, thus operating outside the Treaty Clause?

It is much more likely that the branches will reach provisional understandings on many of the disputed questions through the normal processes of politics than that the Supreme Court will cleanly and, once and for all, declare one or the other view correct. In part this is because similar results in many cases can be reached through statutory construction or reliance on other constitutional provisions, without reaching difficult Vesting Clause issues. In part it is because separation of powers questions often rely heavily on historical practices for their resolution.

Saikrishna B. Prakash James Monroe Distinguished Professor of Law, University of Virginia School of Law
Christopher H. Schroeder Charles S. Murphy Professor of Law and Public Policy Studies, Co-Director of the Program in Public Law, Duke Law School

Matters of Debate

Saikrishna B. Prakash James Monroe Distinguished Professor of Law, University of Virginia School of Law

The Significance of “Executive Power” By Saikrishna B. Prakash

Article II’s modest list of specific powers might lead one to suppose that the President was meant to have but few authorities.

The Most Compelling Reading of the Vesting Clause By Christopher H. Schroeder

Matters of Debate

The Significance of “Executive Power” By Saikrishna B. Prakash

The Significance of “Executive Power”

By Saikrishna B. Prakash

Article II’s modest list of specific powers might lead one to suppose that the President was meant to have but few authorities. He can pardon people, is Commander in Chief, and, with the Senate’s consent, can appoint to office. Though he has an express duty to ensure faithful execution, one could read the Constitution as never granting him any authority to execute the law in the first instance. Moreover, he seems to have but a slender connection to foreign affairs, with a duty to receive ambassadors and a power, subject to a substantial Senate check, of making treaties. The familiar, powerful Presidency of today may seem surprisingly unconnected to the Constitution’s actual text.

Yet from the Constitution’s inception, the Presidency has been a powerful institution. Early Presidents, from Washington on, assumed a host of powers—over law execution, foreign policy, and executive officers. In particular, Washington and his successors controlled correspondence with foreign countries, directed American ambassadors, ousted foreign ambassadors, executed federal laws, directed prosecutors, and regularly commanded and removed executive officers. No statute authorized these actions. Rather their common foundation arose from the Constitution, which granted the President “the executive Power of the United States.” Presidents continue to exercise such powers, all without statutory warrant.

Grants of “executive power” were familiar, primarily because most extant state constitutions expressly granted such authority in contexts where it was clear that the provisions granted a suite of powers. The Constitution replicated that system. As Alexander Hamilton put it, the Constitution’s “general doctrine” is that the “Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the” Constitution.

Another Perspective

This essay is part of a discussion about the Vesting Clause with Christopher H. Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies, Co-Director of the Program in Public Law, Duke Law School. Read the full discussion here.

If that is the “doctrine” of the Constitution, what are we to make of the particularized grants? Hamilton again had the answer: “The enumeration [of particular authorities] ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts of the constitution and to the principles of free government.” This structure—a general grant, followed by clarification and limitation—was hardly unusual. As James Madison put, “[n]othing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” Article II followed that natural structure.

Two vital constraints hem in the Vesting Clause’s rule that the President enjoys those powers traditionally vested with chief executives. First, the Vesting Clause never grants to the President the powers granted elsewhere to Congress. Hence our President cannot regulate foreign commerce or declare war. Stripping away these traditional executive powers helps ensure that the Presidency is not too formidable. Second, specific constitutional checks restrain executive authority. Despite the grant of executive power, the President cannot appoint or make treaties without the Senate’s advice and consent. Nor can he pardon impeachment convictions or violations of state law.

Executive power minimalists make some respectable arguments. Yet none of them can overcome text, history, and longstanding practice. First, their claims disregard the eighteenth-century meaning of executive power. “Executive Power” was not an empty phrase. Rather it encompassed control of law execution, foreign affairs, and executive officers. Second, rules of interpretation oblige us to heed the differences across the first three Articles. Article I, Section 1 (“All legislative Powers herein granted shall be vested in a Congress . . . .”) evidently means to vest no powers separate from those specifically enumerated in Article I. In contrast, Article III, Section 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish”) clearly vests the federal courts with “judicial” authority. The Executive Vesting Clause has the structure of its Article III counterpart, in contrast to the Article I Clause. Third, although minimalists sometimes say they wish to avoid redundancies, their theory generates that very problem. The rest of Article II makes abundantly clear that there would be only one executive, styled the “President” (Article II repeatedly mention a “President” and use the pronoun “he”). Hence minimalists would have us read the Vesting Clause as if it served no purpose.

From time to time, the Supreme Court has embraced the idea that the Vesting Clause grants powers beyond those specifically enumerated in Article II. In Myers v. United States(1926), the Court cited the Clause as the source of removal and supervisory powers over executive officers. Nixon v. Fitzgerald (1982) unambiguously cited the Clause as a source of three powers—law enforcement, foreign affairs, and a supervisory power over the executive branch. In a 2003 case touching upon foreign affairs, American Insurance Ass’n v. Garamendi, the judiciary affirmed that the Vesting Clause grants foreign-affairs authority. In a rather recent case, Free Enterprise Fund v. Public Co. Accounting Oversight Board (2010), the Supreme Court repeatedly declared that certain removal protections for commissioners were inconsistent with the grant of executive power, thereby grounding the President’s removal power in the Vesting Clause.

Though the Court has read the Clause as granting power, its decisions also have limited its reach. Post-Myers, the Supreme Court essentially sanctioned the creation of a fourth branch of government in the form of numerous independent agencies that simultaneously exercise legislative, executive, and judicial powers. The most notable such case, Morrison v. Olson(1988), acknowledged that the Vesting Clause granted the President control over prosecutions. Yet the Court concluded that the good-cause removal restriction imposed by statute (the executive could not remove at his discretion) did not “unduly trammel on executive authority.” That framework encapsulates the Supreme Court’s case law on the Vesting Clause: while the Clause grants the President substantive powers not found elsewhere in the Constitution, Congress may regulate, to some uncertain extent, the exercise of those powers.

Saikrishna B. Prakash James Monroe Distinguished Professor of Law, University of Virginia School of Law

Matters of Debate

The Most Compelling Reading of the Vesting Clause By Christopher H. Schroeder

The Most Compelling Reading of the Vesting Clause

By Christopher H. Schroeder

The opening sentence of Article II states that “[t]he executive power shall be vested in a President of the United States.” The most natural reading of this Vesting Clause is that it establishes a unitary presidency with the power to execute the laws of the United States. Some would read it more narrowly, simply as a signifier that the office of the Presidency will be held by a single person. There is less difference between these two options than meets the eye. The narrow reading does not alter the overall allocation of presidential authority, because the presidential duty in Article II, Section III, to “take care that the laws be faithfully executed,” should be taken to imply the power to accomplish what is necessary to discharge that duty. What I have called the most natural reading of the constitutional text comports with the widespread Founding-era understanding that the executive officer or officers of government had responsibility for executing the laws.

On the other hand, reading the Clause more expansively to encompass unstated or residual powers—perhaps powers that are insulated from any ability of Congress to regulate via duly enacted laws—would substantially alter the Constitution’s allocation of powers. It would also be inconsistent with the historical and political context of the Founding. Such a reading would give to the President powers akin to the “prerogatives” of British kings of which the Founders were highly suspicious.

To be sure, the experience of the United States under the Articles of Confederation and the individual state constitutions between 1776 and 1787 led to significant dissatisfaction with government dominated by the legislature, and to considerable interest in a federal government with a stronger executive. But “stronger” did not translate to “monarchical.” The antipathy toward monarchy and monarchical prerogatives remained, and in 1787 the political climate likewise remained inhospitable to the idea of an Executive holding substantial unstated, unenumerated, or residual rights. This antipathy was most strongly expressed against potentially oppressive authorities over which the President claimed unilateral sway, the common understanding of prerogative. Justice Jackson’s view from Youngstown Sheet & Tube Co. v. Sawyer (1952) that the President’s powers are at their lowest ebb when they are asserted to be exclusive of legislative regulation comports more nearly with the Founding era mood. The Constitution’s defenders asserted that it established a government of enumerated powers, as well as one that set ambition against ambition.

Another Perspective

This essay is part of a discussion about the Vesting Clause with Saikrishna B. Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law. Read the full discussion here.

What I have called the natural reading of the text is supported by the ratification convention debates. One of the recurring criticisms of the Constitution argued that it assigned powers to the President that would produce a return to monarchy. Opponents seeking to articulate these concerns pointed to a number of features of the Constitution’s provisions to support the claim of monarchical powers, but they never drew attention to the unstated or residual powers supposedly encompassed by the phrase “executive power.” Likewise, the Constitution’s defenders did not feel compelled to demonstrate that any such residual powers were reasonable, even though they did respond to their critics by taking each of the stated powers of the President one-by-one to show each was reasonable and would not produce a bad result. Particularly prominent was Hamilton’s discussion of presidential powers in The Federalist No. 67 and No. 69, in which he reviewed each of the President’s enumerated powers, never mentioning the residual powers supposedly contained within the term “executive power.” Thus neither opponents nor proponents of the Constitution asserted that “executive power” had any larger meaning than that conveyed by the natural reading of the Vesting Clause.

In 1793, after the Constitution was ratified, Hamilton, writing as Pacificus, asserted that the Vesting Clause did have a broader meaning when he defended President Washington’s neutrality declaration. Various public officials, including the opinion for the Supreme Court in Myers v. United States (1926), have subsequently also given voice to it. The Pacificus essay, however, leaned more heavily on other arguments based on specific and stated presidential powers, which were more than sufficient to carry the defense. As for Myers, much of the opinion can be read consistently with the Vesting Clause’s natural reading, because at least some ability to control and remove some executive branch officials is fairly implied as necessary to discharge the President’s take care responsibilities as well as the President’s law execution authority.

Reasonable people can disagree as to whether that presidential power needs to be unfettered with respect to all executive branch officials. Myers’ apparent holding that it did was the controversial dimension of the decision, and the Supreme Court rather quickly walked this part back, first in Humphrey’s Executor v. United States (1935) and later in Morrison v. Olson (1988), which held that an independent counsel could be protected from removal through a good cause requirement, because that protection did not impermissibly burden the President’s ability to control or supervise the independent counsel.

Both President Richard Nixon and President George W. Bush in his first term provided glimpses into the implications of a very strong reading of the Vesting Clause. President Nixon and his representatives claimed an array of exclusive and preclusive powers. In President Nixon’s case, these included the authority not to spend congressionally allocated funds, the right to decide what presidential communications would be made public, the right to prevent any executive official from disclosing information to Congress, and the right to render legal acts of subordinates that would be illegal absent presidential direction. President Bush’s lawyers argued for similarly broad authorities to ignore acts of Congress regulating presidential actions, relying after 9/11 on the President’s duties as Commander in Chief as well as on the allegedly expansive content of the Vesting Clause.

These presidencies show that giving the Vesting Clause a reading more broad than its natural meaning, and especially finding there what Justice Jackson in Youngstown termed “conclusive and preclusive” powers, would place an enormous repository of authority outside of the system of checks and balances that animates our Constitution. As Jackson noted, because such claims put “at stake . . . the equilibrium established by our constitutional system,” they must be “scrutinized with caution.” Neither Nixon’s nor Bush’s aggressive assertions of such authorities were vindicated by the Supreme Court. By and large, the decisions of the Supreme Court have adhered to the Jackson approach, declining to read more into the Vesting Clause than the text’s natural reading, the Constitution’s overall structure, and the Clause’s historical and political context justify.

Christopher H. Schroeder Charles S. Murphy Professor of Law and Public Policy Studies, Co-Director of the Program in Public Law, Duke Law School

Common Interpretation

Article II, Section 3

Article II, Section 3

By William P. Marshall and Saikrishna B. Prakash

Article II, Section 3 both grants and constrains presidential power. This Section invests the President with the discretion to convene Congress on “extraordinary occasions,” a power that has been used to call the chambers to consider nominations, war, and emergency legislation. It further grants the President the authority to adjourn Congress whenever the chambers cannot agree when to adjourn, a power that no President has ever exercised.

Section 3 imposes obligations on the President that are varied and significant. The President must provide information on the “state of the union” from “time to time.” This seems to require the President to share information with Congress. The President shall “recommend” measures to Congress, a soft duty that necessarily cedes discretion. The President “shall receive” all foreign ambassadors, a duty that many suppose grants Presidents authority over whether to recognize foreign nations and their governments. The President “shall Commission all the officers of the United States,” a Clause that forces the President to authenticate the status of federal officials.

Finally, and most significantly, Section 3 contains the Faithful Execution Clause, commonly known as the Take Care Clause. The Take Care Clause is arguably a major source of presidential power because it seemingly invests the office with broad enforcement authority. Yet, at the same time, the provision also serves as a major limitation on that power because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them.

The Take Care Clause has played a central role in momentous constitutional disputes. Legislators have discussed it in many debates regarding the scope of presidential power, including whether the President has a constitutional power to remove federal officers. Two Presidents, Andrew Johnson and William Clinton, were impeached by the House, at least in part, for allegedly violating their Take Care Clause duties. Famous Supreme Court cases, like Youngstown Sheet & Tube v. Sawyer (1952) and Myers v. United States (1926), relied upon particular claims about the Clause. More recently the Clause played a central role in the debates and litigation surrounding President Barack Obama’s enforcement of federal immigration laws.

The Clause traces back to the 1776 Pennsylvania Constitution and the 1777 New York Constitution. Both granted their executives “executive power” and also required them to execute the laws faithfully. Early constitutional discussions shed some light on its meaning. Though the Clause is found amidst a sea of duties in Article II, Section 3, some, including Alexander Hamilton, spoke of the “power” of “faithfully executing the laws.” While President, George Washington observed, “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty.

At a minimum, the Clause means that the President may neither breach federal law nor order his or her subordinates to do so, for defiance cannot be considered faithful execution. The Constitution also incorporates the English bars on dispensing or suspending the law, with some supposing that the Clause itself prohibits both. Hence the Constitution itself never grants the President authority to either authorize private violations of the law (issue individualized dispensations) or nullify laws (suspend their operation).

Beyond these constraints, the Clause raises a number of vexing questions. For instance, must the President enforce even those laws he or she believes to be unconstitutional? Some scholars argue that Presidents must enforce all congressional laws, without regard to his or her own constitutional opinions. Yet modern Presidents occasionally exercise a power to ignore such enactments on the grounds they are not true “laws” subject to the faithful execution duty. In so doing, they somewhat mimic the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Act on the grounds that it was unconstitutional.

There is also the related question of whether the President must honor statutes that purport to limit his or her authority over law execution. Can Congress decree by statute that the President must allow others to implement certain statutes without regard to presidential supervision or oversight? Again, some suppose that the Congress can insulate execution from presidential control while others insist that the Congress cannot strip away the President’s duty.

Finally, the sweep of contemporary federal law ensures that federal law enforcers have tremendous enforcement discretion. In particular, resource constraints coupled with numerous violations often preclude a policy of total enforcement. Given the inevitable tradeoffs, modern Presidents weigh the costs and benefits of investigation, apprehension, and prosecution, and sometimes create rules for allocating scarce resources across the range of possible investigations and prosecutions. In this context, judging what counts as faithful execution is laden with value judgments about the relative merits of certain enforcement priorities over others. Moreover, contentious disputes about the scope of discretion invariably revolve around claims that the President has violated his or her duty of faithful execution by failing to adopt a particular enforcement policy or strategy.

William P. Marshall William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law
Saikrishna B. Prakash James Monroe Distinguished Professor of Law, University of Virginia School of Law

Matters of Debate

William P. Marshall William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law

Article II, Section 3 and the Limits of Presidential Power By William P. Marshall

At the time of the Framing it was assumed that the most powerful branch of government was the legislature.

Saikrishna B. Prakash James Monroe Distinguished Professor of Law, University of Virginia School of Law

Presidential Duties By Saikrishna B. Prakash

Matters of Debate

Article II, Section 3 and the Limits of Presidential Power By William P. Marshall

Article II, Section 3 and the Limits of Presidential Power

By William P. Marshall

At the time of the Framing it was assumed that the most powerful branch of government was the legislature. That is one of the reasons why Congress was made bicameral while the executive was unitary—so that legislative power and executive power could be effectively balanced. Today, however, any notion that Congress is twice as powerful as the Presidency would be dismissed as fanciful. The Presidency is the most powerful branch.

Article II, Section 3 has not played a major role in presidential power expansion (although as discussed below, it should be interpreted in light of that expansion). Rather the scope of presidential power has been determined more by how executive power has actually been exercised than by constitutional text. As Justice Jackson observed over 50 years ago in Youngstown Sheet & Tube v. Sawyer (1952), “[t]he Constitution does not disclose the measure of actual controls wielded by the modern presidential office. . . Vast accretions of federal power . . . have magnified the scope of presidential activity [so that] the centers of real power . . . do not show on the face of the Constitution.”

There are a number of reasons why the President has become so dominant. First, the Presidency has become the focus of national power and culture, giving the President the unique ability to set the political agenda. In Justice Jackson’s words: “[e]xecutive power has the advantage of concentration in a single head in whose choice a whole nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”

Second, presidential power has expanded because each successive President is able to rely on the actions of their predecessors in justifying their own use of power. In this way, the use of presidential power works as a one-way ratchet with each President building on the actions of those that came before.

Third, presidential power has grown because the size and jurisdiction of the federal government have expanded. The President directs an administrative state that oversees everything from prescription drugs to smoke stack emissions to college sports and from economic development to workplace safety to national parks management. As a result, the President has the ability to make decisions that reach almost every aspect of American life. Further, as head of the federal government, presidents have unparalleled resources to use in advancing their political agenda. This includes access to military and civilian intelligence, the expertise and assistance of countless federal agencies, and the command of the most powerful military in the world. No other branch has such resources at its disposal.

Another Perspective

This essay is part of a discussion about Article II, Section 3 with Saikrishna B. Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law. Read the full discussion here.

Fourth, presidential power has expanded because of the need for exigent decisionmaking in the modern world. The suddenness with which contemporary events demand government response inevitably invests power in the only branch capable of reacting immediately—the Executive.

Fifth, presidential power has increased because of the changed nature of politics. In the current political environment, those elected to Congress often see their political duty as supporting their party rather than protecting their institutional concerns as legislators. For that reason, many are unwilling or unable to check the President’s power when their party is in the majority. Further, and paradoxically, contemporary politics has served to increase presidential power even when the Presidency and the Congress are controlled by different parties. In those circumstances, Congress has at times so rigidly opposed a President’s agenda that Presidents have been able to claim that their use of unilateral executive power is necessary to overcome Congress’s “obstructionism.”

It is against this recognition of presidential power dominance that specific issues raised by Section 3—and particularly the Take Care Clause—should be analyzed. Given that the Constitution was designed to allow branches to check other branches, one should be cautious in interpreting particular provisions in a manner that would add to the current imbalance.

Some have argued, for example, that the Take Care Clause should be interpreted to prevent the creation of independent agencies because protecting the officers in those agencies from removal at will by the President interferes with the latter’s ability to execute the law as they see fit. But given the scope and breadth of the administrative state, there are often strong reasons for insulating particular agencies from political control in order to foster independent, nonpartisan decisionmaking.

Concerns with centering too much power in the Presidency also arise in relation to whether Presidents must comply with and defend laws that they believe are unconstitutional. Some contend that the Take Care provision grants Presidents wide discretion to disregard laws that they believe are unconstitutional even when there are substantial arguments to the contrary. Others suggest that Presidents may only refuse to comply with or defend laws when there is absolutely no credible constitutional defense of those provisions. Given that reasoned constitutional interpretation varies so widely, the latter may be the better route. Otherwise, Presidents may be able to end-run the actions of Congress too easily.

Similar concerns arise with a President’s refusal to enforce laws on policy grounds. Presidents have, and should have, wide-ranging discretion on how to enforce particular laws. As Professor Prakash points out in his essay, enforcing every federal law against every offender would be impossible. Further, there seems to be little doubt that Presidents may take policy considerations into account when setting enforcement priorities. But when Presidents use their enforcement power to essentially invalidate or re-write statutes with which they do not agree, serious questions arise as to whether they are meeting their “take care” obligations. The problem, of course, is determining when a President’s actions are legitimate uses of enforcement discretion and when they are, in effect, illegitimate usurpations of legislative authority. To this point, the courts have not yet come up with an answer to this question. But at some point, they will be forced to.

William P. Marshall William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law

Matters of Debate

Presidential Duties By Saikrishna B. Prakash

Presidential Duties

By Saikrishna B. Prakash

Most of Article II, Section 3 has been inconsequential. Yet there are notable changes in practice that bear on that section. Despite the State of the Union Clause, the executive is increasingly unwilling to share information with Congress. Citing “executive privilege” (the right to keep secrets from the courts and Congress, endorsed by the Supreme Court in United States v. Nixon (1974)), the executive often withholds information from Congress. Another revolution concerns the extent of the President’s leadership in legislation. When Presidents “recommend . . . measures,” they now do so as the de facto head of their party and with the predictable support of a good portion of the two chambers. As a result, Presidents are often the primary driver of legislation and legislative agendas, particularly in the first months of their first term (the period of “100 days”).

The Take Care Clause has the most modern resonance. By virtue of his “executive Power,” the President may execute federal laws and control executive officers who execute those laws. The Take Care Clause modifies that grant, requiring the President to “take Care that the Laws be faithfully executed.” At the Founding, the President’s power over law execution was praised as ensuring prompt and vigorous implementation of laws, something lacking under the Articles of Confederation. As one opponent of the Constitution noted, law execution was best entrusted “to the direction and care of one man.” A single executive seemed “peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity.” The chief executive would ensure wise, prompt, and uniform law execution by “direct[ing]” subordinate executives.

Another Perspective

This essay is part of a discussion about Article II, Section 3 with William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law. Read the full discussion here.

The Take Care Clause is the focus of several ongoing disputes. First, consider restrictions on the removal of officers. In a series of unfortunate cases, the Supreme Court has sanctioned the creation of independent agencies, which operate as a fourth branch of government. These agencies execute various federal laws (communications, banking, securities) by investigating and prosecuting alleged violations. Congress has protected these agencies from executive influence by imposing “for cause” restrictions on the removal of their top officers. It is hard to escape the conclusion that such statutes are unconstitutional. They violate the grant of executive power and interfere with the Take Care Clause duty. In creating mini-fiefdoms, Congress has essentially stripped away the President’s executive power and granted it to these agencies. Moreover, Congress has erected statutory obstacles making it rather difficult for the President to judge whether the law is being faithfully executed.

Second, there are continuing disagreements about whether the President must abide by, defend, and enforce laws that he regards as unconstitutional. Presidents sometimes declare that because they believe parts of a law to be unconstitutional, they will ignore those provisions. Some scholars have argued that the Take Care Clause prohibits the President from refusing to honor, defend, and enforce federal laws. Once a bill becomes law, the President must enforce it. A contrary (and better) view supposes that unconstitutional laws are void from the beginning and thus not subject to the Clause. Though the Supreme Court has never held that the President may decline to enforce unconstitutional statutes, numerous Justices have hinted at such authority. Moreover, the practice goes back to Thomas Jefferson, when he refused to continue prosecuting individuals for violations of a statute he believed to be unconstitutional. Jefferson said that the alleged statute (the infamous Sedition Act) was no law at all and hence not subject to the Take Care Clause.

Lastly, there are recurring clashes about when and whether the President may decline to enforce statutes based on policy reasons. The Constitution never conveys any power to decline to enforce (to suspend) a statute. That much is clear. Yet despite this constraint, Presidents will almost necessarily enjoy a great deal of enforcement discretion. To begin with, using his constitutional power to pardon, the President can forgive offenses even before trial or conviction, meaning that executive officers need not investigate and prosecute every offender of federal law. Moreover, resource constraints coupled with innumerable violations of federal law preclude complete enforcement of all federal laws. There are too many laws, too many scofflaws, and but limited resources. Given the inevitable tradeoffs, Presidents may allocate scarce enforcement resources after weighing the costs and benefits of investigation, apprehension, and prosecution.

Recognizing that it would be highly impolitic to assert a constitutional power to decline to enforce statutes, modern Presidents carefully avoid embracing such a power. Instead, they invariably argue that the laws implicitly or explicitly convey enforcement discretion. Critics of these presidential measures deny that the statutes in question grant discretion and argue that in declining to enforce a law the President has violated his Faithful Execution duties. Discerning the truth of the matter requires a careful consideration of the relevant statutes, including enforcement resources. Sometimes there are no easy answers.

Saikrishna B. Prakash James Monroe Distinguished Professor of Law, University of Virginia School of Law

Common Interpretation

Article II, Section 4 By Neil Kinkopf and Keith E. Whittington

Article II, Section 4

By Neil J. Kinkopf and Keith E. Whittington

The final section of Article II, which generally describes the executive branch, specifies that the “President, Vice President and all civil Officers of the United States” shall be removed from office if convicted in an impeachment trial of “Treason, Bribery, or other high Crimes and Misdemeanors.” Two clauses in Article I lay out the role of the House of Representatives and the Senate in impeachments and in trials of impeachment. In practice, impeachments by the House have been rare, and convictions after a trial by the Senate even less common. Two Presidents, one Senator, one cabinet officer, and fifteen judges have been impeached, and of those only eight judges have been convicted and removed from office.

This sparse history has given Congress relatively few opportunities to flesh out the bare bones of the constitutional text. The Impeachment Clause was included in the Constitution in order to create another check against abuses by government officials and to give Congress the ability to remove from power an unfit officer who might otherwise be doing damage to the public good. Unsurprisingly, most “civil officers of the United States” who have found themselves damaged by scandal have preferred to resign rather than endure an impeachment. The House and Senate have refused to act on impeachment charges against individuals who were not then holding a federal office. The Senate early on decided that members of Congress should be expelled by their individual chambers rather than be subjected to an impeachment trial. Presidents have acted quickly to remove problematic members of the executive branch. As a practical matter, judges and Presidents have been the primary targets of impeachment inquiries.

Much of the controversy surrounding the Impeachment Clause has revolved around the meaning of “high Crimes and Misdemeanors,” a phrase that is unique to the impeachment context. The Clause seems to rule out the possibility of Congress impeaching and removing officials simply for incompetence or general unfitness for office. Impeachments are not a remedy for government officials who are simply bad at their jobs. It is a remedy for abuses of public office. But the line between general unfitness and abuse of office can be blurry.

The first Senate conviction in an impeachment trial was of a federal judge, John Pickering, who was charged with issuing rulings that were “contrary to his trust and duty as a judge” and “in violation of the laws of the United States,” as well as appearing on the bench “in a state of total intoxication” in a manner “disgraceful to his own character as a judge and degrading to the honor of the United States.” The judge’s son filed a petition with the Senate explaining the “real situation,” that his father “has been, and now is, insane.” The judge no longer had the mental capacity to commit high crimes. While the Senate preferred not to delve into that question in detail, it was uncomfortable voting on a resolution stating that the judge was “guilty of high crimes and misdemeanors.” The senators simply concluded that he was “guilty as charged,” and voted to remove him from office. The Senate was not anxious to say that Pickering had committed a crime, but neither was it willing to leave him on the bench.

While the Pickering case was idiosyncratic and awkward, it raised issues that remain unresolved about the scope of the impeachment power. Can a government official be impeached and convicted for innocent mistakes, or must they have bad intentions? Is it sufficient to justify an impeachment and conviction if a government official commits acts that are “disgraceful,” contrary to the “trust and duty” of their office, or “degrading to the honor of the United States,” or can impeachment only be justified when an official has committed criminal acts? Do “high crimes” include only criminal offenses for which one could be prosecuted in a court of law, or can they include other forms of misconduct? Are some violations of the law too trivial to be considered “high crimes” that would justify an impeachment? Can private misdeeds justify an impeachment, or must the actions in question be connected to the conduct of the office that an individual holds?

While still serving as a member of the House of Representatives, Gerald Ford once said that impeachable offenses are whatever a majority of the House considered them to be. The burden is on those who want to bring impeachment charges to persuade a majority of the members of the House of Representatives and two-thirds of the members of the Senate that an act is so serious as to justify removing an individual from office. The impeachment power is a tool that most members of Congress are unwilling to use if it can be avoided, but they have also wanted to preserve it as a tool that is flexible enough to be used in any exceptional circumstances that might arise.

Neil J. Kinkopf Professor of Law, Georgia State University College of Law
Keith E. Whittington William Nelson Cromwell Professor of Politics at Princeton University

Matters of Debate

Neil J. Kinkopf Professor of Law, Georgia State University College of Law

The Scope of the Impeachment Power: What are “High Crimes and Misdemeanors”? By Neil J. Kinkopf

What sort of conduct is so harmful that Congress is justified in impeaching and removing an officer who commits it?

Keith E. Whittington William Nelson Cromwell Professor of Politics at Princeton University

The impeachment power exists at the far margins of American constitutionalism. The Founders sought to create three branches of government, each independent of the others and enmeshed in a system of checks and balances.

Matters of Debate

The Scope of the Impeachment Power: What are “High Crimes and Misdemeanors”? By Neil J. Kinkopf

The Scope of the Impeachment Power: What are “High Crimes and Misdemeanors”?

By Neil J. Kinkopf

What sort of conduct is so harmful that Congress is justified in impeaching and removing an officer who commits it? The Constitution’s answer is “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are clear enough, but the concluding phrase “other high crimes and misdemeanors” is anything but clear.

It is open-ended for the reason many constitutional provisions are vague and open-ended. In the words of the great Chief Justice John Marshall, the “constitution [is] intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs.” In the context of impeachment, this means that the Constitution cannot be expected to specify in detail every ground on which impeachment is or is not permissible. If it attempted to do so, an individual who should be impeached might evade this punishment because the officer’s conduct does not meet some technical element of the definition even though the officer’s conduct had so harmed the nation that all agree the officer should be removed. Instead, the Constitution sets forth the general principle of impeachment and leaves its more specific definition to be developed by the House of Representatives and the Senate.

In this light, then-Representative Gerald Ford’s claim that the House could impeach an officer on any ground it wishes may seem plausible. But the Ford position goes too far. It ignores the Constitution’s text and structure. If the Constitution means to allow impeachment on any ground whatsoever, then why would the Constitution bother to set forth that impeachment and removal may be based only on conduct that rises to the level of “treason, bribery, or other high crimes and misdemeanors”? In fact, the Framers debated this phrase and settled on this formulation precisely to prohibit Congress from impeaching officers for any reason at all. The Framers were determined to limit the grounds on which an officer could be impeached in order to safeguard another constitutional principle: the separation of powers.

It is clear that, in our constitutional system of government, the executive branch (the President, the cabinet, and other officers subordinate to the President) and the judiciary (the Supreme Court and the lower federal courts) are to be independent from the legislature (the House of Representatives and the Senate). The Framers recognized the potential for impeachment to undermine this principle. It is a well-established legal principle that the power to remove is the power to control. The President, for example, can control the agencies of the executive branch principally because the President can remove the heads of the agencies (such as cabinet secretaries) for any reason at all, including for not following an order from the President. They are said to serve at-will because the President can remove them at will. If Congress can impeach and remove the President or Supreme Court Justices for any reason at all, then these officers serve at the will of Congress and are subject to its control.

An early draft of the Constitution gave Congress the power to impeach and remove officers for “maladministration.” James Madison objected to this because the term was so vague that it would allow impeachment for any reason at all. As he put it, “so vague a term will be equivalent to a tenure during the pleasure of the Senate.” The term “maladministration" was then deleted from the draft and replaced by the phrase “other high crimes and misdemeanors.” This shows that the Framers meant for the phrase “high crimes and misdemeanors” to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts.

Another Perspective

This essay is part of a discussion about the Impeachment Clause with Keith E. Whittington, William Nelson Cromwell Professor of Politics at Princeton University. Read the full discussion here.

There is a second constitutional principle at stake in defining the scope of the impeachment power: our commitment to democracy. Allowing Congress to remove Presidents, and executive officers who serve under them, has the effect of thwarting the will of the people. After all, the President is elected to serve a four-year term. How, in a democracy, can we justify giving Congress (or anyone other than the people, for that matter) the power to overrule a presidential election? This can only be justified on the ground that the President has committed acts so dangerous to the public that the President may not be allowed to remain in office until the next election.

Imagine, for example, if it were discovered that a President was secretly a spy and agent for a foreign power. In that sort of case all would agree that the danger to our constitutional system of government, indeed to our nationhood, is such that it is impractical to wait for a presidential election to remove the President. The Framers agreed on this point too. But this emphasizes just how important it is to limit the power to truly egregious conduct and serious harms to the public. Otherwise, this narrow and speculative potential could undermine our basic commitment to democracy.

The constitutional commitment to democracy could explain an interesting feature of the history of impeachments in the United States: no President or executive officer has been removed from office through impeachment (though the threat of impeachment and conviction hastened the resignation of Secretary of War William Belknap in 1876 on charges of financial corruption). Each of the eight officers to be impeached, convicted, and removed has been a judge. Federal judges are appointed, not elected, and enjoy life tenure—that is, unlike a President who serves a four-year term, federal judges serve until they die or decide to retire. To remove a federal judge, then, does not raise the same sort of concerns about overruling an election that removing an executive branch officer does.

Two Presidents—Andrew Johnson and Bill Clinton—have been impeached by the House of Representatives. Neither was convicted by the Senate. Andrew Johnson was impeached in 1868, the last year of his term. One important factor in his acquittal was the reluctance of several Senators to vote for impeachment with a presidential election so close at hand. Best, they thought, to let the voters have their say. Similarly, when the Senate met to try and deliberate on the impeachment of President Clinton, many argued that removing him from office would repudiate the judgment of the people who had reelected him.

Impeachment is a powerful tool. It must be closely limited to situations of conduct that inflicts serious harm on the public and that seriously compromises the officer’s ability to function in office. Otherwise, it could undermine our constitutional system of separation of powers and thwart our fundamental commitment to democracy. The Framers wisely recognized these dangers and added the phrase “high crimes and misdemeanors” precisely to limit the scope of the impeachment power to these most egregious circumstances and to prohibit its use beyond them.

Neil J. Kinkopf Professor of Law, Georgia State University College of Law

Matters of Debate

Balancing Independence and Accountability in Impeachable Offenses

By Keith E. Whittington

The impeachment power exists at the far margins of American constitutionalism. The Founders sought to create three branches of government, each independent of the others and enmeshed in a system of checks and balances. They thought that if government power collapsed into a single set of officials, civil liberty and political effectiveness would be compromised. Each branch of government was armed with its own set of powers and responsibilities and given sufficient tenure and resources to be able to act on its own judgment.

But the desire for independence had to be balanced against a concern with accountability. Government officials needed to be independent enough to be able to act in the public interest, but not so independent as to be able to exercise unchecked power. When the Founders wanted to ensure accountability, they mostly relied on elections and the voters to hold government officials responsible for their actions. But for cases in which abusive behavior could not be tolerated until the next election, they provided for the possibility of impeachment and removal. That power they were only willing to entrust to the most democratic branch of the government, the legislature.

If the impeachment power is going to serve its purpose, it needs to be flexible. When drafting the Impeachment Clause, the delegates in Philadelphia rejected the proposal that officials could be removed for “maladministration.” They preferred language that emphasized abuses and crimes; impeachment in cases of “Treason, Bribery, or other high Crimes and Misdemeanors.” But what might fall into the category of “other high Crimes and Misdemeanors” was still quite unclear.

There are risks associated with either a narrow or broad reading of impeachable offenses. A narrow reading of the Clause risks making the impeachment power inflexible and unable to respond to unanticipated bad behavior on the part of government officials. A broad reading of the Clause risks creating a partisan weapon that can be used by legislators to undermine the independence of other government officials.

If the examples of treason and bribery are taken to be characteristic of the full scope of impeachable offenses, then government officials might only be removable if they commit criminal acts involving their public office. That is an important class of misdeeds, but it seems unlikely that it would capture the full range of behavior that might put the public good in immediate jeopardy. Merely “private” offenses like tax evasion, perjury, sexual assault and obstruction of justice have been deemed worthy of impeachment investigations precisely because they call into question that ability of a judge or executive officer to continue to properly perform their duties and maintain the dignity and respect of the office that they hold. Even some instances of non-criminal misbehavior by a high government official might be regarded as too intolerable to allow them to continue to exercise their public responsibilities.

Another Perspective

This essay is part of a discussion about the Impeachment Clause with Neil J. Kinkopf, Professor of Law, Georgia State University College of Law. Read the full discussion here.

The broader the category of impeachable offenses is understood to be the easier it is for mere political disagreements to become grounds for impeachment investigations. It is all too common for partisans to believe that their political foes are not just wrong but dangerously wrong, not just mistaken but willfully mistaken, not just erroneous but abusive. If the impeachment power is used to settle political scores, then the independence of the separate branches of government will be undermined. If routine impeachments became a tool for overcoming policy disputes and political obstructions, then political power would gradually be centralized in Congress, with the judiciary and the executive reduced to being little more than extensions of the legislative will. The Constitution was not designed to have Presidents and judges sit only at the pleasure of the Congress.

In practice, three factors have discouraged Congress from abusing the impeachment power. First, the House and the Senate have built up precedents over time that give some substantive content to the scope of impeachable offenses. The House is more comfortable pursuing an impeachment and the Senate more comfortable in convicting in the case of an impeachment if the alleged actions are similar to the kinds of behavior that have led to impeachments and convictions in the past.

Second, the Constitution not only sets a substantive standard for impeachable offenses; it also creates procedural barriers for removing government officers. The House must muster a majority to sustain an impeachment effort, and the House managers must be able to persuade two-thirds of the Senators to win a conviction. Especially in the Senate, that hurdle necessitates building a coalition that crosses party lines. A narrowly partisan impeachment effort is unlikely to result in a conviction and removal, and so House leaders have rarely thought impeachments are worth the effort unless members of the minority party are in agreement that impeachable offenses have been committed.

Third, the members of Congress are ultimately accountable to the voters for their actions. If the public is not convinced that an impeachment is justified, legislators are disinclined to risk their own reelection by tilting at windmills.

The Founders left a powerful weapon in the hands of Congress in the form of the impeachment power. Like all powers, the impeachment power is subject to misuse and abuse. The ultimate check on how that power is used is public sentiment. The burden is on those who think that an impeachment is appropriate to persuade others that the circumstances warrant taking such drastic measures. Exercising the impeachment power requires the ability to reach across the political aisle and forge a political consensus that the danger of leaving an individual in power is too great to be risked. In the absence of that consensus, legislators are forced to rely on the more mundane tools that they have at their disposal to check abuses of power and advance the public welfare.

Keith E. Whittington William Nelson Cromwell Professor of Politics at Princeton University

Common Interpretation

Article II, Section 1, Clauses 2 and 3

Article II, Section 1, Clauses 2 and 3

By James W. Ceaser and Jamin Raskin

Most democratic nations on earth elect their presidents by direct popular vote, but that was never the American system and still is not. We use the so-called “Electoral College” system to choose our president, which today means that 538 Electors drawn from the states and the District of Columbia speak for the rest of us. This is a complex and non-uniform state-based process, designed—like the U.S. Senate, which was originally composed of Members chosen by state legislatures, not the people—to filter public opinion through a “deliberative” intermediate institution. But the Electoral College has produced recurring political controversy over the centuries and also experienced significant constitutional, legislative, and political upheaval and revision. Today few people would consider the Electoral College to be a “deliberative” body as it was once imagined because the Electors are appointed mechanistically to winners according to vote totals in the states. Although the Electors meet in their state capitals at a December date set by Congress to cast their ballots, in practice they simply follow the election returns and never conduct substantive discussion or debate about who should be president. Still, the Electors do possess the legal prerogative to vote as they wish, and under extraordinary circumstances they might exercise that prerogative to change the expected outcome dictated by popular election returns.

The colloquially-named Electoral College arises from Article II, Section 1, Clauses 2 and 3, which state that:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an Office of Trust or Profit under the United States shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Under the further original provisions of Article II, Electors cast ballots not for one candidate for president but for two, with the second-place finisher becoming vice-president. No one originally expected that there would be national parties that nominated candidates and slated a ticket for president and vice-president. The strange two-vote feature nevertheless led almost immediately to a serious political crisis in the election of 1800 when Democratic-Republican Thomas Jefferson defeated Federalist John Adams 73-65 in the Electoral College but then tied his own nominal running mate, Aaron Burr, 73-73. The mischievous Burr refused to stand down in the face of this embarrassing constitutional glitch, thus throwing the process into the U.S. House of Representatives under the so-called “contingent election” procedures in which each state’s U.S. House of Representatives delegation casts a single vote for president and the winner of the majority becomes president. The resulting contingent election in the House became a nightmare of its own when the lame-duck Federalist-controlled Congress took an exhausting six days and 36 ballots to choose Jefferson, who the Federalists ultimately considered the lesser of two evils.

The most glaring early bugs in the system—the real possibility of ties, the fact that the president and vice-president could represent different political parties as had happened when Adams and Jefferson served together in 1796—were ironed out by the Twelfth Amendment in 1804. But our unique Electoral College system has continued to shape the country’s politics in fundamental ways that both supporters and critics would agree depart from democratic norms.

Under Article II, the states are allotted a number of Electors equal to their Congressional delegation, which is the number of Representatives plus two for the Senators, but the actual Electors are appointed according to rules set exclusively by the state legislatures themselves. Today, 48 states appoint all of their Electors on a “winner take all” basis from slates provided by the top vote-getter in their statewide popular election for president. But two states—Maine and Nebraska—award the Electors by Congressional District and give their remaining two electoral votes to the statewide winner. Historically, there has been an even more dizzying variety in the systems developed in each state. In the first presidential election, five state legislatures—in Connecticut, Delaware, Georgia, New Jersey, and South Carolina—themselves simply designated presidential Electors without having any popular election at all. In four states, the voters elected all of the Electors. In Virginia, which had ten congressional districts, the General Assembly divided the Commonwealth into twelve presidential districts and conducted a popular election. In subsequent elections, there have been statewide elections, elections of Electors from single-member districts that mirror Congressional districts, elections of Electors from specially designed multi-member districts, elections in which only the Electors’ names appear on the ballot but not the names of the presidential candidates, elections in which the presidential candidates’ names appear on the ballot but not the names of the Electors, and even elections where the state legislatures have chosen not to appoint any Electors.

All of these variations are allowable under the constitutional design. As the Supreme Court wrote in McPherson v. Blacker (1892), which rejected a constitutional challenge to a Michigan law providing for selection of Electors by a district system, “the appointment and mode of appointment of Electors belong exclusively to the states under the constitution of the United States.” We have no uniform national system for appointing Electors, which means the legislatures do not have to consult the public at all. When members of the Florida legislature in 2000 threatened to abandon the results of the statewide popular contest and appoint Electors for a particular candidate, the Supreme Court in Bush v. Gore (2000) appeared to endorse their power to do so by denying that citizens have a constitutional right to vote in presidential elections. As the majority put it, “The individual citizen has no federal constitutional right to vote for Electors for the President of the United States. . .” When it comes to presidential elections, the voters are at the mercy of the state legislatures.

Although this lack of procedural uniformity has not proven especially controversial, this fact has: the Electoral College has periodically produced winners who clearly lost the national popular vote to an opponent. In at least five presidential elections—1824, 1876, 1888, 2000, and 2016—the presidential candidate who prevailed in the popular vote lost in the Electoral College. For example, in the disputed election of 2000, Vice President Al Gore received over 500,000 more votes than Governor George W. Bush did nationally, but lost to Bush in the Electoral College by a vote of 266 to 271, after the Supreme Court intervened, on equal protection claims, to halt a Florida Supreme Court order to recount ballots in some counties. Many people believe that the ability to carry the whole election by capturing this or that state—in our time it has been Florida and Ohio—increases the likelihood of strategic mischief and corruption in the electoral process.

Supporters of the Electoral College credit it with preserving an important dimension of state-based federalism in our presidential elections and argue that it works to guarantee that our Presidents will have nationwide support. Critics argue under current circumstances that it actually consigns most states in the Union to “spectator” status in presidential elections and drags down voter turnout in these states, reduces the real field of play to fewer than a dozen “swing states,” and dramatically polarizes the nation’s politics while reducing voter turnout. Proposed constitutional amendments for different plans for a direct popular election—some with a run-off provision in the event no candidate receives 40 percent in the first round—have to date made little headway.

A recent and unusual plan to work around the amendment process and address the problems of the Electoral College is the National Popular Vote Plan, which began in Maryland in 2007 and has since won support from a dozen other states. The idea is to form an interstate agreement for states to appoint their Electors for the winner of the national popular vote rather than the winner in each state. Champions of this plan assert that it would guarantee that there would be no more “wrong winners” and that every part of the Union would attract political investment and campaigning by the parties which today quickly abandon large parts of the country to their opponents while taking many other states for granted. Opponents say that the National Popular Vote plan actually defeats the state-based design of the Electoral College, could never be enforced if a state reneged on its promise, and is unconstitutional. Given the continuing polarization of American politics and background unhappiness with the Electoral College, it seems certain that the National Popular Vote plan and other reform proposals will continue to attract public attention and debate.

James W. Ceaser Professor of Politics at the University of Virginia
Jamin Raskin U.S. Representative for Maryland's 8th Congressional District, Professor of Law at the American University Washington College of Law

Matters of Debate

Jamin Raskin U.S. Representative for Maryland's 8th Congressional District, Professor of Law at the American University Washington College of Law

Article II, Section 1, Clause 2 and the Campaign for a National Popular Vote By Jamin Raskin

Article II, Section 1, Clause 2 of the U.S. Constitution opens by saying: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

Article II, Section I By James W. Ceaser

Matters of Debate

Article II, Section 1, Clause 2 and the Campaign for a National Popular Vote By Jamin Raskin

Article II, Section 1, Clause 2 and the Campaign for a National Popular Vote

By Jamin Raskin

Article II, Section 1, Clause 2 of the U.S. Constitution opens by saying: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” This open-ended delegation of power to the states over the award of their Electoral votes creates a power in state legislatures that is “exclusive” and “plenary,” and the legislatures have exercised their power in a multiplicity of surprising ways to participate in presidential elections.

Today, there is a movement underway for a “National Popular Vote” (NPV) interstate compact, which hinges on creative and collaborative deployment of this robust state legislative power. The members of this compact coalition—Maryland (which launched the effort), along with California, Hawaii, Illinois, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington, and the District of Columbia—have all agreed to cast their state’s Electoral College votes for the winner of the national popular vote rather than the winner in their states. The Compact is activated when states representing 270 Electoral College votes agree to join. There are currently 165 Electoral votes represented in the Compact, more than half needed.

By tying the award of Electors to the results in the national popular election, the NPV would replace the current state-by-state competition with an effective national popular election, thereby (1) guaranteeing that the Electoral College winner is the popular vote winner, (2) establishing presidential elections in which every vote counts and every vote counts equally, (3) incentivizing presidential candidates to campaign all over America—even in safe-blue states like California, New York, and Hawaii, and safe-red states like Texas, Missouri, and Alaska—instead of just in the dozen or so “swing states” like Florida or New Hampshire, (4) dramatically increasing campaign activity in today’s 38 “spectator states” and driving up turnout everywhere, and (5) reducing the incentives for electoral corruption and strategic mischief in the handful of swing states, the kind of moral hazard that made the 2000 presidential election in Florida such a political debacle and international scandal.

Some critics of the National Popular Vote plan defend the way the Electoral College system is working today, with 48 states choosing to give all their Electors in presidential elections to the statewide first-place finisher in winner-take-all fashion, and two states—Maine and Nebraska—divvying up their Electors by Congressional District with the two bonus Electors going to the winner in the statewide vote. Defenders are not troubled by the fact that two of our last five presidents (George W. Bush and Donald Trump) lost the national popular vote, with President Trump losing it decisively to Hillary Clinton by more than 2.8 million votes. And some argue, somewhat dubiously, that candidates are forced to campaign all over the country under the current regime, a point that may be the opposite of the truth.

Other critics of the National Popular Vote plan make a constitutional argument, asserting that states do not have the power to enter such a compact because they are bound to cast their Electors only in accordance with how a plurality of the voters of the states prefer. This constitutional argument defies the plain language of Article 2, Section 1 and the actual history of its operation. The pervasive state-by-state winner-take-all method of awarding electoral votes is nowhere to be found in the Constitution, was never debated at the Constitutional Convention (as far as we can tell), and is not mentioned in the Federalist Papers. Furthermore, it was used by only three of our first thirteen states when our first presidential election took place in 1789—and all of them dropped it by 1800. In reality, the states have adopted a vast array of different approaches for awarding Electors, including: naming them in state law; appointing them in single-member congressional districts; assigning them by multi-member Congressional districts; giving the Governor the power to appoint them; giving the Governor and his cabinet the power to appoint them; giving the Governor and the lower house of the state legislature the power to appoint them; giving both houses of the legislature the power to appoint Electors in a concurrent resolution; or delegating the power to elect them to both houses of the legislature acting together in a joint convention. In some states the voters vote for Electors directly, and in others they vote for the presidential candidates.

Another Perspective

This essay is part of a discussion about Article II, Section I with James W. Ceaser, Professor of Politics at the University of Virginia. Read the full discussion here.

The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their Electors “exclusive” and “plenary.” The leading decision is McPherson v. Blacker (1892) in which the Court rejected a constitutional attack on Michigan’s plan for choosing Electors and held:

The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [the winner-take-all rule] nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. . . . In short, the appointment and mode of appointment of electors belong exclusively to the states under the Constitution of the United States.

The National Popular Vote plan unifies the states’ clear powers under Article II, Section 1 with their power to form interstate compacts with Congressional consent under Article I, Section 10. Given that the popular vote loser has prevailed in the Electoral College five times in our history—in 1824, 1876, 1888, 2000, and 2016—and given that the number of actively contested states in the general election has fallen to a tiny number in our polarized red-state-blue state nation, the National Popular Vote has both a sound constitutional basis and a compelling democratic logic.

Jamin Raskin U.S. Representative for Maryland's 8th Congressional District, Professor of Law at the American University Washington College of Law

Matters of Debate

Article II, Section I By James W. Ceaser

Article II, Section I

By James W. Ceaser

The creation of the office of the presidency at the Constitutional Convention in 1787 was one of greatest changes from the prevailing government under the Articles of Confederation. The Articles had no president or Supreme Court, only a Congress. The clauses of the Constitution under consideration for this essay outline four measures that were designed to promote an independent and responsible executive: the presidential selection system, presidential eligibility, compensation, and the oath of office.

The Presidential Selection System—The Electoral College:

The Electoral College established in Article II, Section I remains in effect, although it operates in a substantially different manner from what was originally envisaged. Much can nevertheless be learned from examining the Founders’ intentions, as there can be no doubt of just how important the selection of the president was to their design of the new government. It is seldom observed that the Electoral College is the fourth national institution created by the Constitution, going along with the Congress, the presidency, and the Court. Its aim was to govern the entirety of the process of selecting the president and vice president, from the initial function of identifying and winnowing the candidates to the final stage of electing these officers (except when, for lack of a majority, the decision of choosing the president is given to the House of Representatives and the vice president to the Senate). The initial function of winnowing the candidates effectively escaped constitutional governance with the formation of political parties in the early nineteenth century. This task, known now as nomination, is performed by the parties and by state laws and primaries.

The Founders had four main objectives for the Electoral College. First, the Electoral College was created to provide the presidency with its own base of support. The plan was the alternative to another method proposed at the Convention, the selection of the president by Congress, which would have risked making the executive subservient to the legislature.

Second, the Founders sought to supply a basis of popular legitimacy for the president. The Electoral College, under which the Electors would be chosen either by the people or the state legislatures, was under the circumstances of the day a quite popular process. The system, it was thought, would ordinarily hear the public voice.

Third, even with this popular input, the Electors were still representatives having the discretion to choose among the most fit of the candidates. The Founders were especially concerned about the dangers involved in the selection of the president, and they counted on the Electors to block the election of a demagogue. No threat was graver than this to the survival of the constitutional system.

Finally, the Electoral College system was meant to channel the energies of the major political figures who had thoughts of achieving the highest office. If the choice of the president was restricted to those who had a proven record of service, a signal would be sent to all the hopefuls to pursue a serious political career and avoid engaging in what Alexander Hamilton dismissively referred to as “the little arts of popularity.”

Presidential Eligibility—The Eligibility Clause:

The Eligibility Clause establishing the criteria of eligibility for the presidency reflected two concerns. The first is to avoid the possibility of divided loyalty on the part of the president. As the president is the most important single official of the government and the one with the major responsibility for conducting affairs with foreign nations, a perfect fidelity to the nation, and to no other country, becomes an essential objective. Even the public suspicion of divided loyalty can sap confidence in the presidency. The Founders accordingly required that, in the future, the president must be a natural-born citizen—that is, not an immigrant—and a resident in the United States for fourteen years before being elected—that is, someone who has not moved to live abroad. Many have questioned this one difference that is created between the status of born and naturalized citizens. It is a measure of the Founders’ concern for removing doubts about the president’s full attachment to the nation.

The second criterion of eligibility is the age requirement of 35 years, five years greater than that of a senator and 10 years of a member of the House. The higher age for the presidency was meant to increase the likelihood that the president would have acquired experience relevant to governing and, returning to the question of presidential selection, that the public and Electors would have a record for judging the candidates. In fact, the minimum age seems to have undershot considerably what the American public has preferred. The youngest person to become president was Theodore Roosevelt, who ascended at age 42 to the presidency from the vice-presidency following the death of William McKinley. John Kennedy was the youngest elected to be president at 43.

These two requirements for eligibility are the only ones in the original Constitution and naturally lead one to think of the many possibilities that do not apply: ethnicity, race, gender, religious affiliation (explicitly excluded in Article VI, Clause 3), and property qualifications. This Clause is also the one that resolved—silently—the question of the number of terms a president can serve. The Founders placed no limits on the length of service. This was changed by the Twenty-Second Amendment, ratified in 1951, which bars eligibility to a person elected to two terms (or one term and service as president for more than two years of the term of another person).

Presidential Compensation—The Compensation Clause:

The Compensation Cause likewise has two objectives. First, while the Constitution does not set a salary, it does say that the president shall be paid, obviating a proposal at the Convention that the president might serve without compensation, which would have restricted the presidency to persons of wealth or favorites of the wealthy. Second, once the Congress sets the compensation, it can neither be increased nor reduced during the time the president serves. Designed to protect the separation of powers and the president’s independence, this provision, in the colorful language of Alexander Hamilton in The Federalist No. 73, would prevent the legislature from attempts to “either reduce [the president] by famine or tempt him by largesses.”

Another Perspective

This essay is part of a discussion about Article II, Section I with Jamin Raskin, U.S. Representative for Maryland's 8th Congressional District, Professor of Law at the American University Washington College of Law. Read the full discussion here.

The Presidential Oath of Office:

Section 1 of Article II concludes with the oath of office. Oaths are mentioned for other officers elsewhere in the Constitution (see Article VI), but only in the case of the presidency is the text of the oath spelled out. This fact, together with the president’s pledge to “the best of my ability to preserve, protect and defend the Constitution,” suggests a special connection between the president and the Constitution.

So the oath was understood by President Lincoln. In one of the most widely discussed texts ever written on the nature of presidential powers, Lincoln in a letter to Albert Hodges offered a commentary on the oath, which he understood to be both a limitation on the president’s authority and a kind of extraordinary grant of discretion. On the first count, Lincoln explained that notwithstanding his personal views of slavery, he felt bound by the oath to restrict his actions on this great matter only to what was permitted under the Constitution. “I understood,” he wrote, “that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery.” Yet he then immediately went on, in the letter’s most famous passage, to state how the oath guided him toward the broadest exercise of presidential discretion:

I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government – that nation – of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.

These four sentences raise the great question of the adequacy of following the letter of the law to achieving, under extreme circumstances, the good of the nation. Lincoln claimed to discover within the text of the Constitution, specifically in the oath, the answer to this most agonizing of dilemmas.